Asylum & Refugee

Political Asylum & Refugee Status and Withholding of Removal (deportation)

Section 208 of the

immigration and Nationality Act provides that an alien who is physically present in the

United States

, or at a land border or port of entry, may apply for, and be granted, asylum, if the Attorney General determines that such alien is a refugee as defined under the law.

The US immigration act defines refugee as any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Withholding of deportation means that the Attorney General shall not deport or return an alien to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion. To be successful on an asylum claim, the alien must prove: (1) that he or she has a well-founded fear of persecution or has suffered past persecution; (2) that such persecution is on account of race, religion, nationality, membership in a particular social group or political opinion; and (3) that asylum should be granted in the exercise of discretion. The US Supreme Court has held that the term "well-founded fear of persecution" means a "reasonable" fear of persecution. The Supreme Court stated that the alien must prove specific facts through objective evidence to prove either past persecution or good reason to fear future persecution. Some factors, which many courts have held constitute persecution, include: murder, torture, prolonged detention, slavery, and cumulative mistreatment. Also, persecution can be economic in nature, but this must usually be very severe and accompanied by some other form of persecution. In recent years, sex-based persecution claims including female genital mutilation, homosexuality, and those with sexually transmitted diseases have been granted asylum. Factors, which have been held not to constitute persecution, include: general harassment, brief detention or incarceration, general economic hardship, general civil unrest in a country, refusal to be drafted in the country's armed forces, or where the applicant will be prosecuted for a violation of the country's criminal laws.

In order to prove a well-founded fear of persecution, the alien must show:

(1) that he or she possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort;
(2) the persecutor is already aware, or could become aware, that he or she possesses this belief or characteristic;
(3) the persecutor has the capability of punishing the alien; and
(4) the persecutor has the inclination to punish the alien.

Also, the government of the country must inflict the persecution, unless the government is unable or unwilling to offer protection against persecution at the hands of other groups. Likewise, a well-founded fear of persecution includes both subjective and objective elements, and the persecution must be based on one of the five grounds mentioned above.

br> The burden of proving persecution is on the alien. However, courts realize that a person fleeing their country may not always be able to take with them the evidence necessary to prove their case. Thus, an alien's own credible testimony supported by general documentary evidence of the conditions in the home country may be sufficient to prove a claim.

Even if an alien establishes a well-founded fear of persecution, asylum may still be denied because of a statutory bar or as a matter of discretion.

For instance, an alien who has been firmly resettled in a third country before entering the

is not eligible for asylum. Firmly resettled means that the alien was offered residence status, citizenship, or some other form of permanent resettlement by another country and traveled to and entered that nation as a consequence of his or her flight from persecution. Likewise, if an alien has persecuted others, is a security risk, or has been convicted by a final judgment of a particularly serious crime thus constituting a danger to the community of the

United States

, he or she is statutorily ineligible for a grant of asylum.

Finally, as mentioned above, asylum may still be denied as a matter of discretion (for instance, if an alien has used false documents, has many arrests, even though no convictions, has lied to USCIS, etc.)

Even if asylum is denied as a matter of discretion, withholding of deportation may still be available, since this relief is mandatory, not discretionary. While an applicant granted only withholding of deportation may remain in the country and obtain employment authorization, this status will not lead to permanent residence, and the USCIS can still attempt to deport the alien to a third country that might be willing to accept the alien.

There are two ways in which an alien may apply for asylum. The first is known as an affirmative application. In this manner, the alien files his or her application directly with the

immigration asylum unit, prior to their being placed in removal proceedings. The applicant will be interviewed on the asylum application, and may be accompanied by an attorney.

The application is filed, in triplicate, on

immigration form I-589, together with two photographs for each applicant fourteen years and older.

Currently there is no fee to file an asylum application; however, the new law permits the

immigration service to establish a fee if it desires. You should attach to the application documentation to support your case. This can include affidavits, news articles, country reports, and other proof of persecution. An asylum officer can adjudicate an asylum application in one of three ways:

(1) The application may be approved. If the application is approved, the applicant who is now called an asylum may apply for adjustment of status to permanent residence one year after obtaining asylum status. In addition, the asylee's spouse and children, if included in the asylum application, and otherwise admissible, may also be granted asylum. If the spouse and children are outside the US, the asylee must file US immigration form I-730 with the appropriate service center. When approved, it will be sent to the consulate abroad where the spouse and children can receive refugee visas.
(2) If the applicant is in status, and the officer wishes to deny the case, the applicant must be sent a notice of intent to deny, which sets out the reasons why the officer intends to deny the case, and gives the applicant at least ten days in which to rebut the notice. If the rebuttal is not sufficient, the application will be denied. However, the applicant can still remain in lawful nonimmigrant status.
(3) If the applicant is out of status, the asylum officer will refer the case to an US immigration judge for a removal hearing. The applicant can then renew the application for asylum before the US immigration judge and have a full hearing on the merits of the application.

In addition to an affirmative asylum application, an alien may file an application once they have been placed in removal proceedings. A hearing on the application will be held before an

immigration judge. The judge may request an advisory opinion from the State Department if he or she feels that it will assist him or her in reaching a decision in the case. As in any other case, the applicant should be prepared to present whatever evidence he or she has in support of the application.

If the

immigration judge grants the application, the asylee is then able to file for adjustment one year later. If the application is denied the alien may file an appeal to the Board of US immigration Appeals. (Please refer to the next section on appeals for a further discussion of the appeals process.) The

immigration Act of 1996 makes some significant changes in the asylum process. The most important change states that a person seeking to file for asylum must do so within one year of arriving in the

United States

. In addition, those in the

United States

, prior to April 1, 1997, must file their applications before April 1, 1998. The only exception to filing late is if the alien can show changed circumstances in the alien's country which materially affect the applicant's eligibility for asylum, or that the alien was unable to timely file because of extraordinary circumstances.

Furthermore, the new act precludes asylum to anyone who had previously applied for asylum and had the application denied, and for any alien who has been convicted of an aggravated felony. Another provision of the new act states that if the Attorney General determines that an alien has made a frivolous application for asylum, the alien shall be permanently ineligible for any other benefit under the

immigration laws. Also, the new act states that an applicant for asylum is not entitled to employment authorization, but the Attorney General may permit it by regulation. Naturally, an attorney may represent an applicant for asylum, provided that it is at no expense to the government.

Finally, the new act states that there is no judicial review of denials or determinations relating specifically to applications filed after the time limit; determinations relating to resettlement in a third country; applications filed after a previous denial; and denials related to a finding of terrorist activity.

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